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4-6322-17617-CV |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Eric V. Herendeen, Complainant, vs. Brett Corson, Respondent. |
ORDER
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The above-entitled matter came on for a probable cause hearing on November 6, 2006, before Administrative Law Judge Bruce H. Johnson to consider a complaint filed by Eric Herendeen on November 1, 2006. The hearing was held by telephone conference call. The parties submitted exhibits which were received during the conference call. The record with respect to the probable cause hearing closed on November 6, 2006, at the conclusion of the telephone conference call.
Eric Herendeen,
Brett Corson, 21688 State Highway 16, Wykoff, MN 55990, participated by telephone, on his own behalf and without counsel (Respondent).
Based upon the record and all of the proceedings in this matter, including the Memorandum incorporated herein, the Administrative Law Judge finds that there is probable cause to believe that Brett Corson violated Minn. Stat. § 211B.06, subd. 1 with respect to the statement contained in Item 5 of the campaign advertisement described in the Complaint. The Complaint’s allegation that the statement contained in Item 6 of that advertisement violated Minn. Stat. § 211B.06 is dismissed.
IT IS ORDERED:
1. That there is probable cause to believe that Brett Corson violated Minn. Stat. § 211B.06, subd. 1, as alleged in the Complaint pertaining to Item 5 of the campaign advertisement.
2.
That there is not probable cause to believe that
Brett Corson violated Minn. Stat. § 211B.06, subd. 1 as alleged in the
Complaint pertaining to
Item 6 of the campaign advertisement and, therefore that portion of the Complaint
is DISMISSED.
Dated: November 8, 2006
/s/ Bruce H. Johnson
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BRUCE H. JOHNSON Assistant Chief Administrative Law Judge |
NOTICE
Under Minn. Stat. § 211B.36, subd. 5, this order is the final decision in this matter and a party aggrieved by this decision may seek judicial review as provided in Minn. Stat. §§ 14.63 to 14.69.
MEMORANDUM
Eric Herendeen and Brett Corson are both candidates for Fillmore County Attorney. Mr. Herendeen filed a complaint alleging that text in a campaign advertisement placed by Mr. Corson is false and violates Minn. Stat. § 211B.06 subd. 1.
Legal standard
Minn. Stat. 211B.06, subd. 1, states:
Gross misdemeanor. A person is guilty of a gross misdemeanor who
intentionally participates in the preparation, dissemination, or broadcast of
paid political advertising or campaign material with respect to the personal or
political character or acts of a candidate, or with respect to the effect of a
ballot question, that is designed or tends to elect, injure, promote, or defeat
a candidate for nomination or election to a public office or to promote or
defeat a ballot question, that is false, and that the person knows is false or
communicates to others with reckless disregard of whether it is false.
A person is
guilty of a misdemeanor who intentionally
participates in the drafting of a letter to the editor with respect to the
personal or political character or acts of a candidate, or with respect to the
effect of a ballot question, that is designed or tends to elect, injure,
promote, or defeat any candidate for nomination or election to a public office
or to promote or defeat a ballot question, that is false, and that the person
knows is false or communicates to others with reckless disregard of whether it
is false.
Complainants alleging violation of Minn. Stat. § 211B.06 have a significant burden. Minn. Stat. § 211B.06 prohibits the preparation and dissemination of false campaign material. In order to be found to have violated this section, a person must intentionally participate in the preparation or dissemination of false campaign material that the person knows is false or communicates with reckless disregard of whether it is false. The standard of proof for a violation of Minn. Stat. § 211B.06 is clear and convincing evidence.
As Minn. Stat. § 211B.06 pertains to this proceeding, the Complaint raises two material issues of fact, the existence of which must be proven by clear and convincing evidence—namely, (1) that the statement at issue is false; and (2) that Mr. Corson knew it was false or communicated it with reckless disregard of whether it was false.[1] In Kennedy v. Voss[2], the Minnesota Supreme Court addressed the issue of what statements are considered to be false and observed that the statute is directed against the evil of making false statements of fact and not against unfavorable deductions, or inferences based on fact. In other words, in order to be false the statement must be factually inaccurate. Expressions of opinion, rhetoric, and figurative language are generally protected speech if, in context, the reader would understand that the statement is not a representation of fact.[3] A challenged statement’s specificity and verifiability, as well as its literary and public context, are factors to be considered when distinguishing between fact and opinion.[4]
If a statement is found to be false, the statute then requires establishment of another fact by clear and convincing evidence—that the person knew the statement is false or communicates the statement with reckless disregard of whether it is false. The term “reckless disregard” was added to the statute in 1998 to expressly incorporate the “actual malice” standard from New York Times v. Sullivan.[5] Based on that standard, a complainant must show by clear and convincing evidence that the respondent prepared or disseminated the campaign material knowing that it was false or did so with reckless disregard for its truth or falsity. The courts have indicated that the test is a subjective one—that a complainant must prove that the respondent “in fact entertained serious doubts” as to the truth of the publication or acted “with a high degree of awareness” of its probable falsity.[6]
Evidence presented at
the Probable Cause Hearing
Mr. Herendeen and Mr. Corson both submitted exhibits[7] and offered their own sworn testimony at the Probable Cause Hearing. The evidence tended to establish the following:
Matthew Opat became the Fillmore County Attorney in January
1997.[8] Mr. Opat hired Mr. Herendeen as Assistant
Fillmore County Attorney.[9] Mr. Herendeen’s primary duties were to
prosecute traffic offenses, DWI offenses, juvenile delinquency and dependency
matters, and certain gross misdemeanor violations.[10] Although it was not his responsibility to
prosecute zoning violations or to advise department heads on zoning matters, on
one occasion in 1997, Mr. Herendeen handled a zoning matter when the
The campaign advertisement at issue concerns semi trailers
that were stored at the residence of Dan Moulton near Chatfield, a city in
On
October 11, 2006, Mr. Herendeen placed a campaign advertisement in the
5. My opponent failed to remove the trailers and restrict the business when he was the Assistant Fillmore County Attorney.[21]
6. My opponent’s failure to act adversely affected the County.[22]
Probable Cause Analysis:
Following a probable cause hearing, the task of the
Presiding Judge is to answer an important question: Given the facts in
the record, it is fair and reasonable to require the respondent to go to
hearing on the merits? A
further hearing on the merits is appropriate if there are sufficient facts in
the record to believe that a violation of law as alleged in the complaint has
occurred. There are
sufficient facts if the Presiding Judge is satisfied that the evidence in the
record, including reliable hearsay, would preclude the granting of a motion for
a directed verdict in a like civil case.[23]
Mr. Herendeen asserts that the statement that he failed to remove the trailers and restrict the business when he was Assistant Fillmore County Attorney is false because he was unaware of complaints about Mr. Moulton’s semi-trailer business until after he left the Fillmore County Attorney’s office.[24] Mr. Corson contends that because the semi-trailers were visible from the roadway, Mr. Herendeen was on notice of the zoning violation while he was Assistant County Attorney. Therefore, Mr. Corson argues that the statement that Mr. Herendeen failed to remove the trailers and restrict the business is not false.[25]
There is conflicting evidence about whether the semi-trailers were visible from the roadway. Mr. Corson submitted a letter from the Zoning Administrator who wrote:
For over 15 years, Mr. Dan Moulton parked used semi trailers on his property. He had 5 to 10 of them. He kept them behind his barn out of sight and they were not a problem. In late 2002 this office began to hear complaints from Mr. Geoff Griffin concerning the trailers. Mr. Griffin owned the property next to Mr. Moulton and was planning a land Subdivision. He didn’t want the perspective landowners in his subdivision to have to look out their windows and seek parked semi trailers. In response to the complaints, Mr. Moulton increased the number of trailers he had parked on his property. As a result this office authored it first letter to Mr. Moulton to clean up the trailers in February 2004.[26]
Mr. Corson submitted an affidavit from Fran Novotny, who stated that “[w]hen I moved to my property 8 years ago, Mr. Moulton was operating his trailer business and they were easily visible from the roadway.”[27] Mr. Corson also submitted an affidavit from Mr. Moulton who stated: “Until 2005, all of my trailers were visible from the road.”[28]
Mr. Corson has submitted conflicting evidence in support of
his assertion. It is not possible to
resolve this factual dispute concerning the statement in Item 5 based on the
record currently before the Administrative Law Judge. The evidence currently in the record is also
insufficient to establish definitively whether the statement was made knowing
it was false or made with reckless disregard of whether it was false. After
considering all of the evidence in the record, and the arguments of the parties
at the probable cause hearing, the Administrative Law Judge concludes that the
Complainant has presented sufficient facts to support a hearing on the merits
regarding Item 5.
However, the Complaint’s allegation regarding the second
statement, Item 6, is dismissed. The
assertion that a failure to act adversely affected the County is opinion.
B.H.J.
[1] Mr. Corson also argued that the statements at issue dealt with Mr. Herendeen’s “failure to act” and therefore did not constitute statements relating to “the personal or political character or acts of a candidate.” However, the statute does not require that the allegedly false statements relate to the personal or political character or acts of a candidate, it requires that the campaign material must relate to personal or political character or acts. Here, the advertisement as a whole states that Mr. Corson’s opponent engaged in “negative and false campaign ads” and therefore related to Mr. Herendeen’s character.
[2]
304 N.W.2d 299 (
[3] Jadwin
v. Minneapolis Star and Tribune, 390 N.W.2d 437, 441 (Minn. App. 1986), citing
Old Dominion Branch No. 496, National Assoc. of Letter Carriers v. Austin,
418 U.S. 264, 284-86 (1974); Greenbelt Coop. Publishing Assoc. v. Bresler,
398 U.S. 6, 13-14 (1970). See also Milkovich v. Lorain Journal Co.,
497
[4] Diesen
v. Hessburg, 455 N.W.2d 446, 451 (
[5] New
York Times v. Sullivan, 376
[6] St.
Amant v. Thompson, 390
[7] Ex. 1 through 14.
[8] Ex. 7.
[9] Ex. 7.
[10] Ex. 7.
[11] Testimony of E. Herendeen.
[12] Ex. 4.
[13] Ex. 5.
[14] Testimony of E. Herendeen; Testimony of Daniel Moulton; Exs. 11, 12 and 14.
[15] Exs. 11, 12 and 14.
[16] Ex. 12.
[17] Exs. 1, 8, and 12.
[18] Ex. 8.
[19] Ex. 8.
[20] Ex. 1; Complaint.
[21] Ex. 1.
[22] Ex. 1.
[23]
[24] Testimony of E. Herendeen.
[25] Testimony of B. Corson.
[26] Ex. 14. The date in the last sentence of Ex. 14 was corrected to read February 2004 by agreement of the parties.
[27] Ex. 10.
[28] Ex. 11.
[29] See
also Riley v. Jankowski, 713 N.W. 2d 379 (Minn. App.) review denied
(